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File Name: 13a0093p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CUMBERLAND RIVER COAL COMPANY, Petitioner,

v.

THE FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION and THE SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA),

Respondents,

CHARLES SCOTT HOWARD, Intervenor.

No. 12-3918

Upon Petition for Review of an Order of the Federal Mine Safety and Health Review Commission.

No. KENT 2011-1379-D.

Argued: March 6, 2013

Decided and Filed: April 4, 2013

Before: MARTIN and GILMAN, Circuit Judges; FOWLKES, District Judge*

COUNSEL

ARGUED: Willa B. Perlmutter, CROWELL & MORING LLP, Washington, D.C., for Petitioner. Lynne B. Dunbar, UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for Respondent Secretary of Labor. Tony Oppegard, Lexington, Kentucky, for Intervenor. ON BRIEF: Willa B. Perlmutter, CROWELL & MORING LLP, Washington, D.C., for Petitioner. Lynne B. Dunbar, W. Christian Schumann, UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for Respondent Secretary of Labor. Tony Oppegard, Lexington, Kentucky, Wes Addington, APPALACHIAN CITIZENS LAW CENTER, Whitesburg, Kentucky, for Intervenor.

*The Honorable John T. Fowlkes, Jr., United States District Judge for the Western District of Tennessee, sitting by designation.

1

No. 12-3918 Cumberland River Coal Co. v. Fed. Mine Safety and Health Review Comm 'n et al.

OPINION

Page2

JOHN T. FOWLKES, JR., District Judge. This appeal comes before the court

because of the Federal Mine Safety and Health Review Commission's (the

"Commission") denial of Cumberland River Coal Company ("CRCC") request for a

Review of the Administrative Law Judge's ("ALJ") decision. The ALJ found that

CRCC discriminated against Charles Howard, a coal miner, under Section 105( c) of the

Federal Mine Safety and Health Act of 1977 (the "Mine Act"), 30 U.S.C. § 815(c),

because of his previous protected activity and that CRCC's asserted business

justification for Howard's termination was pretextual. The ALJ ruled that Howard

should be reinstated to his former position.

Because the Commission declined to review, the ALJ' s decision became the final

order of the Commission, forty days after its issuance. CRCC filed a Petition for Review

in this Court, alleging that the ALJ (1) improperly found that CRCC discriminated

against Howard under Section 105(c) of the Mine Act; (2) applied the wrong standard

in rejecting CRCC 's business justification as a defense to Howard's termination; and (3)

ignored precedent and the safety objectives of the Mine Act by reinstating Howard to his

former position. We conclude that the ALJ did not err in her decision. For the reasons

set forth below, we AFFIRM the ALJ's decision.

I. Background

Charles Scott Howard, the Intervenor in this matter, has been employed as a coal

miner with CRCC since March 2005. At all relevant times, Howard was employed as

an underground face worker.1 During his years of employment with CRCC, Howard

brought seven prior discrimination complaints pursuant to the anti-discrimination

1 As an underground face worker, he is assigned to work underground in the mine's belt corridor.


provision of the Mine Act, Section 105(c), 30 U.S.C. § 815(c)(l).2 His previous

litigation against CRCC was well-known to those employed by CRbc and was very

public.

On July 26, 2010, Howard suffered a head injury while clean'mg the beltline in

the mine's belt corridor. Howard's injury caused residual physic11, cognitive, and

behavioral problems and required him to obtain treatment by his primJry-care physician

and examination by seven different specialists. 3 Each ofthese physicJns, except for Dr.

Robert Granacher, is within CRCC's panel of physicians in its manaked care network.

Howard was placed on leave and received medical treatment and work~rs' compensation

for approximately ten months. After his ten-month leave, seven o~ Howard's eight

physicians ;eleased him to return to work without restrictions. Dr. G~anacher released

Howard back to work, but qualified that Howard should not rethm to any work

conditions that required him to be "at height." Specifically, Dr. GrJacher stated:

In my opinion, within reasonable medical probability, Charil Howard has a 7% neuropsychiatric impairment due to brain trauma Jul~ 26, 2010 . . . . Charles Howard does require restrictions upon job performance not to work at height. ... Charles Howard has the mental capacitylto eilgage in any work he is trained, educated, or experienced to perform.

I In sum, Dr. Granacher expressed his opinion that Howard had achieved maximum

medical improvement and that his prognosis going forward was posi~ive. .

After receiving Dr. Granacher's evaluation, Howard's suJervisor, William

Gilliam, stated his belief that Howard could be accommodated bJsed upon the "at

height" restriction. CRCC' s administration, however, decided that it needed clarification

from Dr. Granacher as to the meaning of"at height." CRCC providr Dr. Granacher

2Howard' s seven prior discrimination complaints against CRCC included allegations that: CRCC

assigned him to undesirable jobs because of his demanding nature; CRCC reduced the workforce to fabricate justifications to terminate him; and CRCC failed to protect his truck from vandalism in the company :rarking lot. .

The physicians who examined Howard are as follows: Dr. Chandrashekar Krishnasway, M.D., neurologist; Dr. Tamara Knox, M.D., neuropsychologist; Dr. Syamala H.K. Reddy, M.D., ophthalmologist; Dr. Travis Burt, M.D., neurosurgeon; Dr. Larry Hartman, M.D., neurosurgeon; Dr. Sachin Kedar, M.D., neuroophthalmogist; and Dr. Robert Granacher, Jr., M.D., neuropsychiatrist.


Page4

with a general job description for the position of an underground face worker. The job

description accurately described Howard's job title but not Howard' k specific duties.4

During all relevant times of his injury, several members of CRCC's l dministration, its

ownership entity, Arch Coal, Inc., and its third-party administratJs, Underwriter's

Safety & Claims and Bluegrass Health Network, Inc., were heavil~ involved in his

worker compensation case. s All parties involved knew about the dt ails of his injury

and workers' compensation benefits and about his previous litigatioi against CRCC.6

Pursuant to the release by his physicians, CRCC reinstated HowarCl to his previous

position and enrolled him in an annual retraining program on May 16, 2011. On that

same day, Dr. Granacher responded to CRCC's inquiry about the "at height"

clarification and replied that he did not believe Howard could return t work as outlined

by the job description. He stated that Howard should be permanentlt "restricted from

undergrowid coal mining and restricted from exposure to moving mact inery. "7 Howard

4 The job description stated that Howard could be responsible for the following duties: 1) working

at heights of five to twenty feet, which is required once per week and 2) cleaning the catwalk of coal debris, wgich requires the worker to stand on the catwalk while cleaning the wa!bfay of coal debris.

The named administrative parties involved were: Valerie Lee, human r(fsources manager for CRCC; Jack McCarty, human resource employee for CRCC; Gaither Frazier, general manager for CRCC; William Gilliam, production foreman at the belt corridor for CRCC; Sue McReynqlds, claim adjuster at Underwriter's; Brenda Riddle, claim adjuster at Underwriter's; Gregg Sisson, supervisor at Underwriter's; Penny Carter, nurse case manager at BHN; Carolyn Rendon, nurse case manager at BHN; Denise Hartling, direct ofrisk management at Arch; Mike Kafoury, in-house counsel at Arch; John Uorson, vice president and chief accounting officer at Arch; Denise Davidson, workers' compensation attorrtey at Arch; and Mike Laskowi~, workers' compensation consultant at Arch.

On August 10, 2010, Lee sent an e-mail to Kafoury telling him to check o ta website regarding Howard ~d his video of leaking mine seals, and Kafoury forwarded it to other Arqh personnel.

Dr. Granacher's opinion was in direct response to a questionnaire that GRCC sent him. The form stated as follows: I

1. Do you feel Mr. Howard can return to work at the job as outlined on the attached job description? Yes No

2. If no, please advise what restrictions he would need:

3. Restrictions are: Permanent _____ or Temporary __ ___,_ I

Compare questionnaire above to the first questionnaire sent to Dr. Granacher on February 1, 2011 (prior to his first evaluation):

1. Is there evidence ofa traumatic brain injury as a result of the wor injury of?-26-10?

2. Diagnosis as it relat,es to the work injury of?-26-10 3. Is any treatment recommended for any work related diagnosis? 4. Prognosis 5. Has Howard achieved maximum medical improvement from your standpoint? 6. Is there any permanent impairment as it related to the work injury bf?-26-1 O?

Please provide the impairment rating.


was immediately removed from retraining; his workers' compensation benefits were

terminated; and he was fired by CRCC. On May 23, 2011 , CRCC sent Howard an

official termination letter, which stated:

Dr. Granacher, one of your treating physicians for your 7 /26/2010 injury; notified Bluegrass Health Network, the workers' compensation agent for Cumberland River Coal Company (CRCC) that you would not be able to work . at your underground face position due to permanent work restrictions .... [W]e do not have any jobs open at this time !for which you are qualified that would not require you to be around 1 operating equipment. In short, we do not know of any available job yoJ could do, with or without accommodation given the restrictions identifi~d by your treating physician. i

I

On May 16, 2011, Howard filed a complaint against CRCC j~leging violations

of Section 105(c) of the Mine Act because CRCC would not allow him to return to his

former employment due to his previous protected activity. On J ay 27, 2011, the

::,c;:::~~::~::e ::~.::·; ~l;~;~p:~::i::::::±~::::::: and CRCC, Howard was economically reinstated. On July 20, 2011 I the Commission

Chief ALJ approved the economic reinstatement agreement. The Secretary filed a

Discrimination Complaint on Howard's behalf on August 8, 2011.

A hearing was held before a Commission ALJ and, on June p, 2012, the ALJ

ruled that CRCC had violated Section 105( c) of the Mine Act. She orclered that Howard

be fully reinstated to his previous position. Specifically, the ALJ ruled that: (1) Howard

had established a prima facie case of discrimination under Section ~ 05( c ); (2) CRCC

tried to prevent Howard from returning from work; and (3) CRCC's akirmative defense

in response to the discrimination claim against Howard was incredibl e. CRCC filed a

Petition for Discretionary Review before the Commission. However! the Petition was

denied on July 25, 2012, and the ALJ's decision became the ~fal order of the

Commission forty days after its issuance. Under Section 106 of the Mine Act, 30 U.S.C.

§§ 815(c) and 816(a)(l), "[a]ny person adversely affected or aggrieJ ed by an order of

No. 12-3918 Cumberland River Coal Co. v. Fed. Mine Safety and Health Review Comm 'net al.

the Commission ... may obtain a review of such order in [the appropriate court of

appeals] ." CRCC now appeals the ALJ's decision to this court.

II. Analysis

A. Standard of Review

Under the Mine Act, this court "reviews the Commission's application oflaw de

nova," but the Commission's factual findings will be found conclusive if they are

supported by substantial evidence. Pendley v. Fed. Mine Safety & Health Review

Comm 'n, 601F.3d417, 422-23 (6th Cir. 2010). The threshold inquiry in determining

the substantiality of the evidence is "whether there is such relevant evidence as a

reasonable mind might accept as adequate to support the conclusion." Id. at 423

(brackets and internal quotation marks omitted). In this case, when the Commission

declined to review the Petition for Discretionary Review, the ALJ' s underlying decision

became the final order of the Commission. Therefore, we review the ALJ's legal

analysis de nova and the ALJ' s factual determinations under the substantial evidence

standard.

B. Prima Facie Case for Discrimination under Pasula-Robinette

The ALJ did not err in finding that Howard was discriminated against under

Section 105(c) of the Mine Act. The purpose of the Mine Act is to ensure the safety of

miners. See 30 U.S.C. § 802. The Mine Act also serves to protect against discrimination

or interference with protected activity. See Section 105(c) of the Mine Act, 30 U.S.C.

§ 815( c ). Under the Mine Act, this court analyzes discrimination complaints under the

Pasula-Robinette framework. See Pendley, 601 F.3d at 423 (citing Collins v. Fed. Mine

Safety & Health Review Comm 'n, 42 F.3d 1388, 1994 WL 683938, at *2 (6th Cir. Dec.

6, 1994)); see also Secy of Labor ex rel. Pasula v. Consolidation Coal Co., 2 FMSHRC

2786 (Oct. 14, 1980), rev 'don other grounds, 663 F.2d 1211 (3d Cir. 1981); Sec '.Y of

Labor ex rel. Robinette v. United Castle Coal Co., 3 FMSHRC 803 (Apr. 3, 1981)). To

establish a prima facie case of discrimination, a miner must show that he was: (1)


Page7

engaging in protected activity, and (2) subject to an adverse employment action that was

at least partially motivated by his protected activity. See Pendley, 601 F.3d at 423.

Once the miner has established these factors, the mine operator can then rebut the prima

facie case by showing that: (1) the miner was not engaged in any protected activity, or

(2) the adverse employment action was not even partially motivated by the miner's

protected activity. See id.

The ALJ properly found that Howard engaged in protected activity during his

employment. The ALJ found that Howard's seven prior filings of Section 105(c)

complaints under the Mine Act constitute protected activity. Furthermore, CRCC

stipulated to these facts. Thus, Howard satisfies the first prong of the prima facie case

of discrimination under Pasula-Robinette.

As to the second prong, the ALJ properly found that Howard's termination was

due, in part, to his protected activity. Through facts that support a reasonable inference

of discriminatory intent, the ALJ found a causal connection between the adverse action

and the protected activities. To determine whether there was a causal connection

between Howard's termination and his protected activities, the ALJ used such factors

as: (1) the mine operator's knowledge of the protected activity; (2) the mine operator's

hostility or "animus" towards the protected activity; (3) the timing of the adverse action

in relation to the protected activity; and (4) the mine operator's disparate treatment of

the miner. See Sec '.Y of Labor o/b/o Howard v. Cumberland River Coal Co., 34

FMSHRC 1396, 1397, 2012 WL 2499038, at *2(June15, 2012) (citing Secy of Labor

o/b/o Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2516, 1981WL141473, at *7

(Nov. 13, 1981), rev 'don other grounds, 709 F.2d 86 (D.C. Cir. 1983).

CRCC argues that because of Howard's brain injury, reinstating him to his prior

position directly contradicts the purpose of the Mine Act, and that adhering to

Dr. Granacher's medical opinion had no connection to Howard's protected activities.

However, the ALJ addressed many of the communications between the administrators

regarding Howard's case. She references a December 17, 2010 e-mail conversation


between the director of risk management and the workers' compensation attorney, which

states,

I'm wondering whether we stand a chance of getting Granacher to give [Howard] an impairment rating . .. The hope is that we will get restrictions as we need to settle with a resignation. I think that both Sherry and Howard feel they won't get any restrictions and he will be back in the driver[']s seat (not what we want).8

The ALJ also pointed to other substantial evidence in the record, such as: (1) the

departure from normal protocol between the various CRCC and third party

administrators involved in Howard's case; 9 (2) the numerous emails between the CRCC

administrators that expressed intentions to restrict Howard from returning to work; (3)

CRCC's reliance on Dr. Granacher's second opinion denying Howard's return to work;

(4) CRCC's disregard for the seven other physicians' opinions allowing Howard to

return to work without restrictions; and (5) the lack of specificity in the job description

and inquiry sent to Dr. Granacher for his clarification of "at height." Accordingly, the

ALJ's decision was not in error, and CRCC's argument fails.

C. Cumberland River Coal Company's Business Justification for Termination

The ALJ did not err in finding that CRCC' s justification for terminating Howard

was pretextual. A mine operator can establish an affirmative defense under the Pasula

Robinette framework by showing that "while it took adverse action against the miner

because of the miner's protected activity, it would have taken that action even if the

miner had not engaged in protected activity." Pendley, 601 F.3d at 423-424. The mine

8 The ALJ also specifically references a December 5, 2010 e-mail from the director of risk

management to the human resource manager at CRCC, a claims adjuster at Underwriter's Safety & Claims, and a nurse case manager at Bluegrass Health Network, Inc. stating that, "Sue, have you sent the [Howard~file to Denise Davidson (this will be her biggest challenge yet)."

"Frazier [general manager for CRCC] agreed that it was unusual to speak with Kafoury, the Arch Coal, Inc. attorney, before allowing a worker to return and that it often happened that an injured worker returned to work with some restriction. . . .Lee [human resource manager for CRCC] further explained that, prior to Howard's injury; she had not heard Hartling [director of management at Arch Coal, Inc.] express the desire to see a miner restricted from returning to work. In fact, witnesses for both sides agreed that the case of Howard was different in many ways from the normal worker injury case." Cumberland River Coal Co., 34 FMSHRC at 1402, 2012 WL 2499038, at *7.


Page9

operator can show this by: (1) past discipline of miner, (2) unsatisfactory past work

record, (3) prior notices for unacceptable behavior, or (4) the miner's noncompliance

with personnel rules. See Bradley v. Belva Coal Co., 4 FMSHRC 982, 993, 1982 WL

176053, at* 9 (June 4, 1982).

When a mine operator asserts its affirmative defense, the threshold inquiry is

"whether [the affirmative defense is] credible and, if so, whether [it] would have

motivated the particular operator as claimed." Id. In examining the mine operator's

justification for terminating a miner, the court must examine "whether the reasons are

plausible, whether they actually motivated the operator' s actions, and whether they

would have led the operator to act even if the miner had not engaged in protected

activity." Pendley, 601 F.3d at 425. In doing so, the court is limited to a "restrained"

examination of the mine operat9r's justification and may not insert its own justification.

Chacon, 1981WL141473, at* 3. However, ifthe court concludes that the affirmative

defense is "weak, implausible, or out of line with the operator's normal business

practices," then the court must find that the justification is pretextual. Sec '.Y of Labor

o/b/o/ Price v. Jim Walter Res. , Inc., 12 FMSHRC 1521, 1534, 1990 WL 511791, at *11

(Aug. 20, 1990).

CRCC argues that the ALJ ignored precedent and inserted her own business

judgment evaluation in the course of her review. CRCC contends that ifthe ALJ had

properly examined the Commission's precedent regarding business justifications, she

would have found that CRCC's adverse employment action against Howard was not in

violation of Section 105( c) of the Mine Act.

However, CRCC misunderstands the standard by which the ALJ was to examine

its business justification. As the Commission has opined,

the reference in Chacon to a "limited" and "restrained" examinationof the business justification defense does not mean that such defenses should be examined superficially or be approved automatically once offered. Rather, we intend that a judge, in carefully analyzing such defenses, should not substitute his business judgment or sense of "industrial justice" for that of the operator.


Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938, 1982 WL 176465 * 3 (Nov. 30,

1982). The only justification CRCC asserts for terminating Howard is a purported safety

argument that is supported by only one physician's opinion. But CRCC discounted the

conclusions of the other seven physicians' medical examinations entirely. Additionally,

nothing in the record shows that Howard was disciplined, given notice of failure to .

comply with personnel rules, or received unsatisfactory reviews-all of which are

appropriate factors to consider when examining the affirmative defense of business

justification. Instead, there is substantial evidence showing that CRCC's justification

was simply a pretext designed to mask the true reason for Howard's termination.

As examined above, the ALJ pointed to several examples of credible and

substantial evidence in the record in reaching her findings: (1) the departure from normal

protocol between the various administrators involved in Howard's case; (2) the

numerous emails between the various administrators that expressed intentions to prevent

Howard from returning to work; (3) the lack of specificity in the job description and

inquiry sent to Dr. Granacher for his clarification of "at height;" (4) CRCC's ;.

unquestioning reliance on Dr. Granacher' s second opinion disallowing Howard to return

to work, even though that opinion departed significantly from the doctor's first opinion;

and (5) CRCC's disregard for the seven other physicians' opinions allowing Howard to

return to work without restrictions. When these facts are considered in their totality, it

is evident that the ALJ did not insert her own business justification and that she properly

found CRCC's business justification to be weak, outside of normal business practices,

and pretextual.

D. Charles Howard's Reinstatement

The ALJ properly found that Howard should be reinstated to his former

employment position. CRCC argues that ordering Howard to be reinstated is directly

at odds with the purposes of the Mine Act, because returning to work would endanger

his health. CRCC contends that Dr. Granacher's medical opinion that Howard has a

seven-percent brain impairment that precludes Howard from returning to work is

No. 12-3918 Cumberland River Coal Co. v. Fed. Mine Safety and Health Review Comm 'net al.

unassailable. Moreover, CRCC asserts that Dr. Granacher's opm10n, as a

neuropsychiatrist, should be weighed more heavily than the other seven physicians'

opinions because of his more in-depth observations and examinations.

CRCC correctly points to the fact that "the first priority and concern of all in the

coal or mining industry must be the health and safety of its most precious resource-the

miner." 30 U.S.C. § 801(a). This Court agrees that the purpose of the Mine Act is to

"avert deaths, serious physical harm, and occupational diseases caused by unsafe and

unhealthy working conditions ~nd practices in the nation's mines." Collins, 1994 WL

683938, at *4. However, CRCC has no viable safety argument in this particular case.

Howard's seven-percent impairment was found to be minimal and unthreatening

for his continued employment at the coal mine by all of his treating

physicians-including Dr. Granacher. Only after CRCC sent an overbroad job

description and a brief clarification questionnaire did Dr. Granacher find that Howard

should not return to work. Consequently, in accordance with the analysis above and

with the stated objectives of the Mine Act, we conclude that the ALJ did not err in

ordering Howard to be reinstated.

III. Conclusion

For the foregoing reasons, we DENY CRCC's Petition for Review of the

Commission's Final Order. The Administrative Law Judge's decision is AFFIRMED.

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